Fly Creek study delayed by access problems: Some property owners won't let researchers on their land to take water samples

(Marc D. Anderson, Press-Register)Looking down from the Scenic 98 bridge in Fairhope, Fly Creek makes its way toward the Fly Creek Marina and Mobile Bay. A proposed study of sediment in the creek, and its source, has been delayed due to property owners who will not allow access to the waterway through their land.FAIRHOPE, Ala. -- A study of how much mud is carried by Fly Creek to Mobile Bay, and where the sediment comes from, has been delayed by the refusal of several property owners to allow access to the waterway through their land.

The Geological Survey of Alabama has recently conducted many similar studies, measuring the mud loads carried by creeks and their tributaries. A study last year showed that D'Olive Creek delivers about 1,977 tons of mud to the bay annually, said Marlon Cook, a hydrologist with Geological Survey.

"We still hope they will change their minds so that we can do the Fly Creek study," Cook said. "It would provide valuable data."

The Mobile Bay National Estuary Program awarded a $20,000 grant for the study late last year. The Geological Survey of Alabama would provide the other $20,000 in funding, Cook said.

The Fly Creek study was requested earlier this year by the city of Fairhope'sEnvironmental Advisory Board.

"We learned that these funds were available from Mobile Bay NEP and we decided to try to get them to look at Fly Creek," said Jim Horner, board chairman. "Fly Creek is tremendously important to Fairhope."

After the funding was secured, the sticking point came when Cook selected water-sampling sites along one of the creek's main tributaries, Horner said. A few of the locations were only accessible by land, and the landowners refused to let the researchers onto their property, Horner said.

"We have to have those sites for a viable study," Horner said.

Among the property owners who refused access were developer Arthur Corte and a few of his relatives, said Kim Burmeister, the city's environmental officer.

The Press-Register's efforts to contact Corte and other property owners were unsuccessful.

Corte, a cattle rancher, owns the massive property that has become known as the "Corte Rectangle" in Fairhope. In 2006, the city zoned the land as a planned-use development, or PUD, that spans 213 acres of timberland east of U.S. 98.

The first part of Corte's Fly Creek project to be developed was the Shoppes at Fairhope Village at Parker Road off U.S. 98.

The construction of that shopping center, where a Publix Super Market opened in July, has been a source of complaints from environmental groups about muddy runoff into Fly Creek.

In fact, the Geological Survey's proposed sedimentation study came just a few months after two nonprofit watchdog groups -- Mobile Baykeeper and Fly Creek Preservation Association -- threatened that they soon could file lawsuits against Corte and the shopping center's contractor, alleging violations of the federal Clean Water Act.

Those suits have not been filed, officials with the environmental groups said.

Fly Creek flows by the newly built Shoppes at Fairhope Village and continues west past affluent homes and Fairhope's largest marina and yacht club before passing into the bay.

"This study will be important to all of the homes and property along the creek eventually," said Councilwoman Debbie Quinn.

Quinn said she talked directly with the landowners, trying to change their minds.

"The Malbis family is actually the main property owner along Fly Creek over there, and they were personally involved in trying to get this study under way," said Cook of the U.S. Geological Survey.

"I think maybe we didn't explain well enough to Mr. Corte and others that we're not a regulatory agency," Cook said. "We're not out to get anyone. We just generate data."

Such data can be used by other agencies or groups. For instance, the D'Olive study is being used by a coalition of government agencies, environmental groups, private interests and citizens trying to restore D'Olive Bay and its 11,000-acre watershed, including its feeder streams and Lake Forest lake.

The city of Daphne is one of the partners in that coalition and has invested thousands of dollars on projects in the watershed, like repairing flawed storm drains and policing Alabama Power property plagued by erosion from illegal vehicle off-roading. 